a r banerjee v. r s verma and others

8/10/2019 A R Banerjee v. R S Verma and Others

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MANU/DE/1643/2012

Equivalent Citation:

IN THE HIGH COURT OF DELHI

LPA 904/2010

Decided On: 10.04.2012

Appellants: A.R. BanerjeeVs.

Respondent: R.S. Verma and Others

Hon'ble Judges/Coram:Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Pratibha Rani

Counsels:For Appellant/Petitioner/Plaintiff: Mr. Anup Banerjee with Md. Naved, Advocates

For Respondents/Defendant: Mr. Anand Nandan, Adv. for R-1, Mr. Arun Birbal, Adv. for DDA.,and Mr. Gautam Awasthi, Adv. for Indian Bank

Subject: Property

Acts/Rules/Orders:Delhi Municipal Corporation Act 1957

Cases Referred:

UOI v. Devraj Gupta MANU/SC/0029/1991 : 1991 (1) SCC 63; M.C.Mehta v. Union of IndiaMANU/SC/0488/2004 : 2004 (6) SCC 588

JUDGMENT

Pratibha Rani, J.

1. The appellant, A.R.Banerjee has impugned the order dated 16.07.2010 passed by thelearned Single Judge in W.P. (C) No. 14090/2009 whereby six months' time was granted to theappellant to obtain requisite permission for using a part of the ground floor for bankingpurposes and the basement for a coaching centre; needless to state the permission had to be

from the competent authority, which as we were given to understand is the MunicipalCorporation of Delhi. As per the order, on appellant's failure to do the needful, the CompetentAuthority was given liberty to take appropriate action as per law. The directions have beenissued on a writ petition filed by the respondent who owns the second floor of the building inquestion.

2. Relating back to the year 2001, we note that the appellant the allottee of plot No. A-100,Chittaranjan Park, New Delhi, ad-measuring 320 sq.yd., entered into a collaboration agreementwith respondent No. 1 Sh.R.S.Verma, to develop said property. As per the collaborationagreement, the building had to be constructed by Sh.R.S.Verma from out of his own funds andthe basement and ground floor thereof were to be the property of the appellant, the secondfloor was the property of respondent No. 1 and the first floor was to be sold and was sold afterthe property was constructed.

3. Chittranjan Park is a re-settlement colony and as per MPD-2021 is to be treated as a re-settlement colony. The plots allotted to the allottees, as per perpetual sub-lease deed executed

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requires a building to be constructed on the plot allotted and used for a residential purpose. Theappellant is also under said obligation to do so.

4. There is a dispute between the parties i.e. the appellant and respondent No. 1 on the subjectto excess construction, beyond the sanction obtained and admittedly, the Municipal Corporationof Delhi has yet to compound the excess construction and there is not even finality on thesubject: Whether the entire unauthorized construction is compoundable or not?

5. The appellant leased out the basement permitting the same to be used by the tenant as acoaching centre i.e. respondent No. 6 and the ground floor to Indian Bank, respondent No. 5.

6. Admittedly, no prior sanction has been obtained from the Competent Authority i.e. theMunicipal Corporation of Delhi for the same.

7. The first respondent filed a writ petition seeking mandamus against the statutory authoritiesto compel them to prevent commercial activities being carried out as afore-noted.

8. Inter-alia, it was informed by the Municipal Corporation of Delhi that there is excess built upconstruction in the entire house and till the same is got regularized, the property cannot evenbe occupied. With respect to commercial activities permissible on residential plots, it wasadmitted that under MPD-2021, under the Mixed Land Use Policy notified under MPD-2021 thesame was contingent upon obtaining a permission from the authorities concerned and that nosuch permission was obtained from the Municipal Corporation of Delhi.

9. The learned Single Judge, after considering the status report and that commercial activitieswere being carried on without required permission, observed in the impugned order as under:-

7. Unless the respondents No. 4 & 5 satisfy all the conditions subject to which suchactivities are permitted, they cannot said to be entitled to carry on the aforesaidactivities.

8. However since the said activities are already going on for sometime now andthere does not appear to have been any application of mind as to whetherrespondents No. 4 & 5 satisfy all conditions subject to which such activity ispermissible, rather than giving directions for stoppage of such activities, it isdeemed expedient to give an opportunity to respondents No. 4 & 5 to represent tothe authorities that they do satisfy the requisite condition. A time of six months isdeemed appropriate in this regard.

9. The counsel for the respondents No. 4 & 5 states that the petitioner is alsorequired to join/cooperate in obtaining the said permissions and is arm twisting therespondents No. 4 & 5. It is contended that the petitioner having sold the property

to the respondent No. 4, is bound by law to so cooperate. It shall be open to therespondent No. 4, if so entitled to take appropriate proceedings against thepetitioner in this regard.

10, Accordingly, this petition is disposed of with the directions that if therespondents No. 4 & 5 do not have the requisite permissions for use of the groundfloor for Bank and basement for coaching centre within six months hereof, therespondents MCD, DDA and police authorities shall take appropriate action forstopping all unauthorized activities in the ground floor and basement of theproperty. The authorities from which such permissions are required shall considerthe objections of petitioner before taking any decision. Needless to state that theparties shall have their remedies in law if aggrieved from said decision. The

MCD/DDA if so approached by respondents No. 4 & 5 for permission to consider thecase within the time frame aforesaid.

10. The contentions urged by counsel for the appellant are that mixed land use is permissible



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under MPD-2021 and no notification is required where the required ROW is there as per Clause15.7 of MPD, in terms of which public and semi public activities are permitted in residentialplots abutting roads of minimum ROW prescribed in 15.7.2 whether or not the road is notifiedfor mixed land use. It was also urged on behalf of the appellant that the property in questioni.e. A-100, C.R.Park, New Delhi is a plot of 320 sq. yds. and the road abutting is 60 ft. (18meters) which is much more than the required 13.5 meters.

11. Since the respondents did not question the eligibility of the property in question withrespect to the mixed land use policy and nobody raised the issue of the width of the road onwhich the building abuts, the contention urged by learned counsel for the appellant need not bedealt with by us for the reason it is nobody's case that as per MPD-2021 the building is eligibleto be put to a mixed land use. And thus we have to consider as to what is the mixed land use.

12. Chapter 15 of MPD-2021 contains mixed use regulations. Relevant clauses for purposes ofdisposal of this appeal are extracted as under:-

15 MIXED USE REGULATIONS

15.1 GOVERNING PRINCIPLES FOR MIXED USE

i. Mixed use means the provision for non-residential activity inresidential premises.

ii. The policy aims to balance the socio-economic need for such activityand the environmental impact of the said activity in residential areas.

15.2.2 TYPES OF MIXED USE

i) Commercial activity in the form of retail shops as per conditions givenin para 15.6 in plots abutting notified mixed use streets.

ii) "Other activity" broadly in the nature of "Public and Semi-Public"facilities listed in para 15.7.1 and as per conditions specified in para15.7, in plots abutting roads of minimum ROW prescribed in para15.3.2.

iii) Professional activity as per conditions specified in para 15.8.

2. In colonies falling in categories C & D

Mixed use in the form of Retail shops shall continue to be permissible as perconditions in para 15.6, in plots abutting notified mixed use streets.

"Other activity" in terms of para 15.7 shall be permissible in plots abutting roads ofminimum 18m ROW in regular plotted development 13.5m ROW in rehabilitationcolonies and 9m ROW in Walled City, regularized - unauthorized colonies,resettlement colonies, Special Areas, and urban villages, subject to conditions inpara 15.7.

Mixed use shall be permissible in pedestrianized shopping streets as per para15.3.3.

Professional activities shall be permissible as per conditions laid down in para 15.8.

15.4 GENERAL TERMS AND CONDITIONS GOVERNING MIXED USE

In residential plotted development



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(i)..........................

(ii) Where there are more than one dwelling units in a residential plot,each of the dwelling units will be permitted to have only type of mixeduse activity (either retail shop as per para 15.6 or professional activityor any one of the other activities listed in para 15.7)

15.7 OTHER ACTIVITY

15.7.1 Subject to the general conditions given in para 15.4 and additionalconditions given in para 15.7.3, the following public and semi-public activities shallalso be permitted in the residential plots abutting roads of minimum ROWprescribed in 15.7.2, whether or not the road is notified as mixed use street:

(a) Pre-primary school (including nursery/Montessori schools, crche.)

(b) i. Nursing home

ii. Clinic, Dispensary, Pathology lab and Diagonostic center.

(c) Guest house (including lodging houses) irrespective of number ofrooms.

(d) Bank.

(e) Fitness Centre (including gymnasium, yoga/meditation centre)

(f) Coaching centres/tuition centres other than those impartingstructured courses leading directly to the award of a degree or diplomaor conducting classes such as a regular school.

15.7.2 The minimum ROW of a street or stretch of road on which the above-mentioned other activities are permissible is as follows:-

In C & D colonies: 18m ROW in regular residential plotted development, 13.5mROW in rehabilitation colonies and 9m ROW in regularized-unauthorized colonies,resettlement colonies, Walled City, special area and urban villages; and inpedestrian shopping streets (of less than 6m ROW)

15.7.3 The above mentioned public and semi-public activities shall be subject to thefollowing additional conditions in addition to general conditions prescribed inpreceding paras:-

ii. Banks shall be permissible on maximum 2/3rd of FAR subject to 600sqm, while guesthouse and nursing homes will be permissible upto3/4th of the floor area.

vii. Coaching centres and tuition centres referred to in para 15.7.1 (f)shall be permissible in upto 2/3rd of the maximum permissible FAR inplots of less than 250 sqm. There shall be no restriction as to minimumsize of plot. Other existing coaching/tuition centres may be allowed tocontinue till end of May 2008 and shift to conforming locations by then.

15.9 REGISTRATION OF MIXED USE PREMISES AND PAYMENT OF CHARGES

i) In respect of a residential premises already under mixed use orintended to be put to mixed use, the owner/allottee/resident of the



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plot/dwelling unit, in case of plotted development and dwelling unit inthe case of group housing, shall be required to declare such mixed useby filling up a form in this respect and depositing it with the local bodyconcerned and pay one-time registration charges at rates to be notifiedwith the approval of the Central Government.

iv) In addition to other penal action available under the relevant act,

properties found to be under mixed use, a penalty amounting to 10times the annual conversion charges for mixed use.

13. Now, as per Regulation 15.4(ii) if there are more than one dwelling units in a residentialplot, each of the dwelling units will be permitted to have only one permissible activity in thenature of a public or semi-public facility. Regulation 15.7.1(d) and (f) list a bank and a coachingcentre as a permissible activity. Thus, the questions of law that have arisen for determinationbefore us are:

1) Could a building meant for residential use be occupied without CompletionCertificate?

2) If the answer to question No. 1 is in negative, then could the appellant put thebuilding to commercial use without required permission from the competentauthority just because MPD-2021 permits mixed use in that area as the road onwhich the plot is situated satisfies the required conditions regarding width of roadand ROW?

3) Can the basement be treated as a dwelling unit for running commercial activitywithout its area being counted towards FAR?

4) The building if regularised, can two commercial activities be carried on frombasement and ground floor when there is only one dwelling unit i.e. ground floor?

14. For the purpose of question No. 1, suffice it to say that it is appellant's own case that:-

first floor was sold to Ambika Thakur and the builder retained the ownership andresidence of the second floor. Possession of the two floors were given to thepetitioner on the basis of C and D form which were actually certificates regardingthe plumbing and drainage work done and in no way can be regarded as asubstitute for a regularization of completion certificate after paying anycompounding fee, if any. In any case the builder cannot create impediment for theowners to obtain the completion certificate and/or any other certificate from theMCD if he is otherwise entitled for the same in a bonafide.

15. Nobody disputed that as per the mandate of the Delhi Municipal Corporation Act 1957 abuilding cannot be occupied unless a completion certificate is obtained and it would beimmaterial, on the facts of the instant case, whether respondent No. 1, as the builder of thebuilding, is responsible for effecting excess construction. The consequence thereof has to follow.The remedy of the appellant is to take resort to a civil action against respondent No. 1. Hecannot tell the Municipal Corporation of Delhi that because he is not responsible for the mess,he is free to act as per his will and fancy. Some money has admittedly been deposited by theappellant with the Municipal Corporation of Delhi and it is not clear whether these arecompounding charges to compound the excess unauthorized construction or by way of chargespayable for permitting use of the property, by his tenants for a banking purpose and a coachingcentre. As per the Municipal Corporation of Delhi, the appellant has deposited some money ofhis own calculation, without proper applications and without the Corporation intimating anydemand. Thus, the appellant has to pursue the matter with the Municipal Corporation forregularizing the excess construction. He has to take positive steps to get over the hurdle andnot seek victory by default.



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16. Unilateral act of the appellant to deposit around `3 lacs with Municipal Corporation of Delhiis thus neither here nor there.

17. We are fortified in the view we have taken with reference to the decisions reported asMANU/SC/0029/1991 : 1991 (1) SCC 63 UOI v. Devraj Gupta and MANU/SC/0488/2004 : 2004(6) SCC 588 M.C.Mehta v. Union of India.

18. We proceed to answer Questions No. 2, 3 and 4, upon the assumption that the building isan authorized construction.

19. MPD-2021 permits, under its mixed land use policy, each dwelling unit to be used for a non-residential purpose, but restricted to the mixed land uses listed and undoubtedly a bank and acoaching centre are so listed.

20. The appellant is the owner of the basement and the ground floor and suffice would it be tohighlight that the basement has not been taken into account for purposes of FAR being utilizedi.e. the basement has been sanctioned for a domestic storage use and not as a dwelling unit.Thus, the appellant can only permit one non-residential activity or can himself engage in onlyone non-residential activity and not two. Thus, in any case, the appellant has to elect and

choose one and leave the other.

21. That apart, the mixed land use policy does not entitle a person to put a residential buildingto a non-residential use as a matter of right, with reference to the permissible nonresidentialactivities. An application has to be filed in a proper manner and sanction obtained from theauthority concerned. Further, merely because an activity is permissible would not mean that theCompetent Authority is bound to accord sanction. Issues pertaining to civic amenities enjoyedby the inhabitants of the colony have to be kept in mind. Say for example, the applicationpertains to commence banking business from a residential unit. The commercial bankingactivity permissible is a neighbourhood bank. In the colony in question four banks are alreadyoperating. The application in question is the fifth in number. It happens that one of the fourbanks is in the immediate neighbourhood building. An issue of the customers parking their cars

on the road on which the two buildings abut requires a consideration and if the CompetentAuthority feels that two banks operating from two adjoining buildings would seriously impedethe flow of traffic, to and fro, through the public street in question, to and from the colony,permission can be denied.

22. We thus agree with the conclusion arrived at by the learned Single Judge and for which wehave given additional reasons as afore-noted. We dispose of the appeal leaving it open to theappellant to elect as to which one out of the two non-residential activities he intends his tenantto continue with and this he must do within 30 days from today. Within this period the appellantwould be free to file a proper application before the Engineering Division of the MunicipalCorporation of Delhi who would pass an order with respect to the permissible compoundabledeviations and the charges payable for the same. Upon paying the same, the compoundable

deviations would be compounded and if there are non-compoundable deviations, if theappellant does not rectify the same, the Municipal Corporation of Delhi would be free to takeaction as per law. Further, within a month therefrom, the appellant would be permitted to seekpermission to use or permit to use the portions in his ownership and possession for a no-residential user (only one) and the said application shall be processed by the MunicipalCorporation of Delhi as per law. Directing that one out of the two users shall be discontinuedwithin 30 days, we direct that if within the next six months the issue pertaining to regularizationand/or appellant being entitled to use the portions owned by him for a mixed land use are notsorted out, the appellant would discontinue even said use. No costs.

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